1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v ARNOLD SCHWARZENEGGER, in his official capacity as governor of California; EDMUND G BROWN JR, in his official capacity as attorney general of California; MARK B HORTON, in his official capacity as director of the California Department of Public Health and state registrar of vital statistics; LINETTE SCOTT, in her official capacity as deputy director of health information & strategic planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, Defendants, DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIOFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
No
C 09-2292 VRW ORDER
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Proponents object to Magistrate Judge Spero's discovery order, Doc #372, on three grounds: (1) its definition of relevant
documents; (2) its rulings regarding proponents' First Amendment privilege; and (3) its schedule for production of documents. #446. Doc
Plaintiffs argue Judge Spero's order was correct and should Doc #470. A magistrate judge's discovery order
not be disturbed.
may be modified or set aside only if it is "clearly erroneous or contrary to law." FRCP 72(a).
Proponents first object that Judge Spero failed to incorporate the court's relevance rulings from its October 1, Doc #214, and November 11, Doc #252, orders. Doc #446 at 9. At the
January 6, 2010 hearing before Judge Spero, proponents could not point to conclusive relevance determinations from the October 1 and November 11 orders regarding plaintiffs' Document Requests Nos 1, 6 and 8. Doc #362, Hrg Tr Jan 6, 2010 at 21. Judge Spero therefore
ordered proponents to produce all documents that "contain, refer or relate to any arguments for or against Proposition 8." 5. Doc #372 at
Judge Spero's order is consistent with the court's previous
relevance rulings and is therefore not clearly erroneous. Proponents object to Judge Spero's rulings regarding proponents' First Amendment privilege. First, proponents object
that they are required to log all communications among core group members regardless of the content of the communication. at 15. Doc #446
But as Judge Spero explained at the January 6 hearing,
internal core group communications not related to strategy and messaging do not enjoy protection under proponents' First
Amendment privilege in light of the Ninth Circuit's ruling in Perry v Schwarzenegger, 09-17241 amended slip op at 36 n12. 2 Doc #362 at
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85.
Thus, to the extent Judge Spero permitted proponents to log
rather than produce core group documents not related to strategy or messaging, Judge Spero's order benefits proponents and was not clearly erroneous. Proponents object to Judge Spero's definition of the "core group" involved in developing strategy and messaging for the ProtectMarriage.com ­ Yes on 8 campaign. Doc #446 at 15-17. But
the core group as defined in Judge Spero's order is adopted from the declaration of Ron Prentice submitted by proponents. at 4. Doc #372
Indeed, Judge Spero incorporated almost every individual and
entity referenced in the Prentice declaration except MCSI, as Bill Criswell had submitted a declaration under oath stating that "[a]t no time did MCSI develop or assist in the development of the message(s) or theme(s) conveyed by the campaign to the voting populace." Doc #351-1 at 2 ¶5. Judge Spero's reliance on the
Prentice declaration and the declaration of Bill Criswell to define the core group was not clearly erroneous. Finally, proponents object to the production schedule set by Judge Spero to conclude on January 17, 2010 at 12 PM. at 19-20. Doc #446
But in light of the ongoing trial, it was not in error
to set an ambitious, but orderly, production schedule. Because Judge Spero did not clearly err in any of his discovery rulings, proponents' objections, Doc #446, are DENIED.
IT IS SO ORDERED.
VAUGHN R WALKER United States District Chief Judge
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